By Hilda Mulwa
Introduction
In cross-border commercial contracting, force majeure is often treated as standard boilerplate language inserted almost mechanically at the back of agreements, rarely interrogated in negotiation and even more rarely stress-tested in commercial planning. Yet, in practice, it is one of the most consequential risk allocation tools in modern contracting. Geopolitical instability, supply chain disruptions, regulatory shocks, pandemics, sanctions regimes and currency controls have all converged to elevate force majeure from a peripheral clause to a central pillar of contractual resilience.
The difficulty is that while parties draft force majeure clauses to provide certainty, their operation is almost always triggered in circumstances defined by uncertainty. This gap between drafting intent and real-world application is where most disputes originate.
- The Legal Architecture: What Kenyan Law Actually Recognizes
Under Kenyan law, force majeure is not a creature of statute. Its existence and effect are purely contractual. The legal foundation for its application is anchored in the freedom of contract principle, subject to statutory limitations and common law doctrines. Pursuant to section 3(1) of the Judicature Act, Kenyan courts are guided by the substance of the common law of England as at the applicable reception date, together with equity and statutes of general application, so far as the circumstances of Kenya and its inhabitants permit. The implication is that force majeure is not implied into contracts and will not be read into an agreement where the parties have not expressly provided for it.
In the absence of an express clause, parties sometimes attempt to rely on the doctrine of frustration under common law principles as received in Kenya. However, the threshold is deliberately high. Kenyan courts, consistent with common law authorities, have maintained that a contract is only frustrated where an intervening event renders performance impossible, illegal or radically different from what was contemplated. Mere hardship, inconvenience or increased cost does not suffice.
The practical position is therefore clear: force majeure in Kenya is a matter of drafting, not implication. Where it is absent, parties are left to a narrow and restrictive doctrine that rarely offers commercial relief.
- Force Majeure Vs Frustration: A Frequently Misunderstood Distinction
A persistent weakness in cross-border contracting is the tendency to conflate force majeure with frustration. While they may appear functionally similar, they operate on fundamentally different legal bases and produce materially different outcomes. Force majeure is a contractual mechanism that is activated strictly in accordance with the wording agreed by the parties and operates within the risk allocation framework they have designed. Depending on drafting, it may suspend obligations, extend timelines, excuse non-performance or in some cases permit termination.
Frustration, by contrast, operates as a matter of law. It is not dependent on contractual drafting and applies only in narrow circumstances where an unforeseen event fundamentally alters the nature of the contractual obligations. Its effect is automatic discharge of the contract, with the consequence that future obligations are extinguished.
The distinction is commercially significant. Force majeure preserves the contractual framework and allows parties to manage disruption within it. Frustration destroys the contract entirely. In practice, courts are reluctant to invoke frustration where the parties have allocated risk contractually, even imperfectly. The result is that poorly drafted or absent force majeure clauses often leave parties exposed to outcomes they did not anticipate and cannot easily remedy.
- Cross-Border Agreements: The Real Point of Failure
The most acute challenges in force majeure clauses arise in cross-border transactions, where contracts must operate across different legal systems, commercial expectations and regulatory environments. It is in this context that drafting weaknesses become most visible and most costly. One recurring issue is jurisdictional misalignment. Clauses drafted with assumptions drawn from one legal system often do not translate cleanly into another. For example, broad formulations that may be commercially acceptable in one jurisdiction can create interpretive uncertainty in another, particularly where courts favour strict textual analysis over purposive interpretation.
Another common defect is over-generalization in clauses that rely on sweeping language such as “events beyond reasonable control” without anchoring those events to specific categories. This tends to generate disputes rather than resolve them. Instead of providing certainty, they shift the battleground to whether the triggering event falls within scope.
Procedural gaps also frequently undermine otherwise sound clauses. Notice provisions are often vague or silent on timelines, evidentiary requirements and consequences of non-compliance. In practice, failure to comply with notice requirements can be determinative regardless of whether a qualifying event has occurred.
Modern cross-border contracts also often fail to adequately address regulatory and sanctions risk. Where contracts do not expressly deal with export restrictions, trade embargoes or foreign exchange controls, parties are forced into uncertain arguments about whether such developments fall within traditional force majeure language.
- Post-Pandemic Impact
The COVID-19 pandemic marked a structural shift in how force majeure is understood, not because it expanded the doctrine but because it exposed the limitations of conventional drafting. It demonstrated that global disruptions can occur at scale, yet still fail to meet strict legal thresholds for non-performance. The legal position that has emerged is more disciplined than expansive. A pandemic, or similar systemic event, does not automatically trigger force majeure relief. The affected party must still demonstrate that performance has been rendered impossible or fundamentally altered in accordance with the contractual language.
Similarly, economic hardship, inflationary pressure, supply chain delays or increased operational costs are generally insufficient. Courts and tribunals continue to draw a firm line between impossibility and commercial difficulty. What has changed, however, is the increased scrutiny of regulatory intervention. Government action affecting trade, licensing or movement of goods is now more readily analyzed within force majeure frameworks, particularly where such intervention directly prevents performance rather than merely complicating it.
The broader commercial reality is that force majeure clauses are no longer interpreted in isolation. They are assessed against a backdrop of systemic volatility, which demands more precise drafting and more deliberate allocation of risk.
- The Practical Reality
In practice, force majeure disputes rarely turn on whether a disruptive event occurred. Courts and arbitral tribunals are generally willing to accept that crises happen. The real issue is whether the contractual architecture was capable of absorbing that crisis. Most disputes therefore focus on three questions:
- whether the event falls within the contractual definition of force majeure
- whether the affected party complied with procedural obligations such as notice and mitigation
- whether performance was truly impossible rather than commercially burdensome.
The uncomfortable reality is that many of these disputes are not caused by unforeseen global events, but by foreseeable drafting weaknesses. In that sense, force majeure litigation is often less about catastrophe and more about contractual design failure.
- How to Remedy this Shortfall
A robust force majeure clause is not defined by length or complexity but by precision and operational clarity. Effective drafting begins with clearly defined triggering events, structured in a way that distinguishes between illustrative categories and genuinely open-ended language to avoid interpretive ambiguity.
Strong clauses also draw a clear conceptual distinction between impossibility of performance and mere commercial inconvenience, ensuring that the threshold for relief is aligned with the parties’ commercial intent. Without this distinction, disputes inevitably arise over whether performance has truly been prevented or merely made more onerous.
Equally important are procedural safeguards. Notice requirements must be specific, time-bound and linked to evidentiary standards that are commercially realistic but legally enforceable. Failure to comply should have clearly articulated consequences to avoid later litigation over technical compliance issues.
Well-drafted clauses also incorporate graduated remedies. Rather than moving immediately from suspension to termination, they typically provide for structured escalation beginning with suspension, followed by renegotiation obligation and only then termination where disruption persists beyond a defined threshold.
Finally, modern clauses must integrate explicitly with regulatory and financial risk considerations including currency restrictions, sanctions exposure and supply chain disruption. In cross-border agreements, failure to address these issues directly is increasingly viewed as a drafting omission rather than a legal gap.
- Conclusion
Force majeure has evolved from a peripheral contractual clause into a central mechanism for allocating systemic risk in cross-border commerce. Yet its effectiveness depends almost entirely on the precision of its drafting and its alignment with the legal systems in which it is expected to operate. In Kenyan law, where force majeure is strictly contractual and frustration remains narrowly construed, the burden lies squarely on contracting parties to ensure that their agreements are capable of withstanding disruption. The law will not rescue ambiguity, nor will it rewrite risk allocation after the fact.
Ultimately, the question is not whether force majeure clauses exist in cross-border agreements, but whether they are engineered to function when tested by real-world conflict. In many cases, the answer will depend less on the scale of disruption than on the quality of foresight embedded in the contract itself.